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Judge amends ruling allowing aboriginal girl to go off chemo

Words saying the “best interests of the child must be paramount" have been added to the ruling for pre-teen J.J., who recently went back on chemo after her leukemia returned.

Justice Gethin Edward agreed Friday to amend his controversial ruling in the case of an aboriginal girl whose family wanted to take her off chemotherapy in order to pursue native or natural remedies. The family now agrees that conventional medicine could help their daughter, whose leukemia returned. (DALE BRAZAO / TORONTO STAR) | Order this photo

BRANTFORD—When Justice Gethin Edward ruled last year that an aboriginal mother had a constitutional right to seek indigenous medicine for her 11-year-old daughter rather than chemotherapy, critics howled that he had failed to recognize that a child’s best interests trump all else.

In what one observer described as “backpedalling,” Edward issued an endorsement Friday amending his own ruling at the request of all parties, by including that “recognition and implementation of the right to use traditional medicines must remain consistent with the principle that the best interests of the child remain paramount.”

The move brings an end to litigation in the highly contentious case and follows months-long talks between the family of J.J., who cannot be named due to a publication ban, and the Ontario government, which began talks with the family after Edward's November ruling.

The amendment was absolutely necessary, but does nothing to make Edward’s original ruling any more reasonable, said Amir Attaran, a law and medicine professor at the University of Ottawa. He said Friday's ruling constitutes “backpedalling.”

“The November decision basically meant that aboriginal rights totally eclipsed the best interest of the child, and that’s why the government really had no choice but to do something about this decision,” he said.

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“What the judgment now does is state there is an aboriginal right to health that includes choosing one’s treatment, but it does place a limit on it by saying that the best interests of the child remain paramount…

"The endorsement undoes the damage to the jurisprudence; however, it does not mean that Justice Edward ruled wisely (in November). Quite the opposite, his ruling was extremely unwise and inhumane.”

Experts say that, should a similar case arise in future, Friday’s amendment will make it even more likely that a hospital would win and have the child put back into treatment, while allowing him or her to continue seeking indigenous treatment as well.

J.J.’s case began last year, when McMaster Children’s Hospital in Hamilton sought to have her deemed a child in need of protection after her mother pulled her out of chemotherapy treatment for acute lymphoblastic leukemia in August.

Physicians said J.J. had a very high chance of being cured if she continued with the medical treatment, but Brant Family and Children’s Services did not believe J.J. was in need of protection.

Edward concluded in November that J.J.’s mother was exercising “her constitutionally protected right to pursue their traditional medicine,” adding: “Such a right cannot be qualified as a right only if it is proven to work by employing the Western medical paradigm. To do so would be to leave open the opportunity to perpetually erode aboriginal rights.”

The term “best interests of the child,” which Attaran described as the “guiding principle,” was not mentioned in the original decision.

J.J. and her family made their first appearance in court on Friday.

The 11-year-old girl could often be seen talking to relatives or looking at the floor as lawyers for the parties — the hospital, children’s aid, Six Nations, J.J.’s family, the government and the Office of the Children’s Lawyer — took turns praising the co-operation that led to Friday’s decision and that averted a drawn-out and costly appeal.

She looked up briefly and offered a faint smile when counsel for the Attorney General offered her best wishes on behalf of the premier.

Court heard Friday that J.J.’s cancer returned in March. Her family’s lawyer, Paul Williams, told the Star she was placed back on chemotherapy at that time, while continuing to receive indigenous treatment. He refused to provide any other details on her health.

“This clarification now allows the family to proceed, with peace of mind and privacy, with their daughter's treatment, using the best that both (indigenous and non-indigenous) medicines have to offer,” reads a joint statement from the government, Six Nations and J.J.’s family.

Since Edward’s November ruling, J.J. has had an “integrated health team” that involves both indigenous and non-indigenous treatment, according to a joint submission filed in court by all parties.

The team includes a doctor, a senior pediatric oncologist recommended by the government, and a Haudenosaunee chief who practises traditional medicine and was invited by the family.

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